A day after the opposition submitted a no-confidence resolution against Prime Minister Imran Khan to the National Assembly (NA) Secretariat, the government shared its strategy to deal with the motion, saying that none of its members will appear in the lower house on the day of the vote.
Adviser to the Prime Minister on Parliamentary Affairs Dr Babar Awan disclosed on Wednesday that only NA Speaker Asad Qaiser would be present at the session, adding that "I do not have a vote so I, too, will go."
Senior minister and a close aide of PM Imran, Asad Umar, talking to Geo News, reiterated the same, saying that it was the opposition's job to show it had the support of 172 MNAs and therefore government lawmakers would not attend the no-confidence vote.
This has raised the question of what will happen if the dissident PTI MNAs are present in the House on the day of the session and vote against party line. Can the NA speaker, who is from the PTI, decide to not count the votes of those MNAs? What does the Constitution say? And if the speaker does not count those votes, do those MNAs have legal recourse?
Explainer: How does a no-confidence motion work?
According to Article 63-A of the Constitution, a parliamentarian can be disqualified on grounds of defection if he "votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, in relation to election of the prime minister or chief minister; or a vote of confidence or a vote of no-confidence; or a money bill or a Constitution (amendment) bill".
The article says that the party head has to declare in writing that the MNA concerned has defected but before making the declaration, the party head will "provide such member with an opportunity to show cause as to why such declaration may not be made against him".
After giving the member a chance to explain their reasons, the party head will forward the declaration to the speaker, who will forward it to the chief election commissioner (CEC). The CEC will then have 30 days to confirm the declaration. If confirmed by the CEC, the member "shall cease to be a member of the House and his seat shall become vacant".
Dawn.com reached out to legal experts to ask whether the speaker could disqualify dissident lawmakers on his own and thereby dismiss their votes during the no-confidence motion against the prime minister.
'Twisting of rules'
Lawyer Reema Omer tweeted that Article 63-A was being "twisted" by some of her colleagues to argue that the party head could declare the dissident MNAs had defected even before the voting takes place so the NA speaker could then disregard their votes.
She argued that "such interpretation is disingenuous, desperate, and clearly against text of relevant laws + SC judgments".
She also shared a Supreme Court judgment that rejected PM Imran's plea to de-seat Ayesha Gulalai because the latter had not been given the chance to defend her position.
The judgement reads: "The Election Commission found and we agree that the respondent was condemned unheard which is clearly violative of proviso to Article 63A of the Constitution which obligates the party head to provide any member against whom a declaration is sought to be given an opportunity to show cause why such declaration may not be issued against him. It is clear and obvious from the record that the respondent was not heard and the stance taken by her in her response to the show cause was not considered which violated her legal and constitutional rights."
Her assessment was similar to that of Pakistan Institute of Legislative Development and Transparency (Pildat) President Ahmed Bilal Mehboob's. He said there is no way a member can be disqualified before a no-confidence vote has taken place.
“They can’t stop them nor can they disqualify them. The action against defection has been very clearly defined in Article 63A,” he said.
Former ECP secretary Kunwar Dilshad concurred, saying: “Immediately, the speaker of the National Assembly can’t stop a member from casting a vote or create a hurdle in doing so.”
Lawyer Jibran Nasir said that according to his reading of Article 63-A, the NA speaker would be bound to count the votes of the dissident MNAs, although they could be penalised after the process was over.
Since voting for a no-confidence resolution is conducted openly by division, the speaker cannot simply disregard the presence of those MNAs, Nasir said, pointing out that they could not abstain and would have to vote either for the resolution or against it.
Pildat President Mehboob further said that the defection clause will only be applicable on PTI's lawmakers and not the MNAs of its coalition partners such as the Pakistan Muslim League-Quaid (PML-Q) and Muttahida Qaumi Movement-Pakistan (MQM-P).
“Alliances are just political arrangements,” explained lawyer Abdul Moiz Jaferii, adding that the party leadership of ally parties can decide to proceed against its own members.
Meanwhile, Interior Minister Sheikh Rashid Ahmed said NA Speaker Asad Qaiser had the right to disqualify members who "crossed floor" in the lower house and that "no one could challenge that", implying that their votes could be dismissed as well.
Rashid said all political parties had given this right to the speaker in the 18th Amendment in a bid to stop horse-trading and that this right could not be challenged by anyone.
Special Assistant to the Prime Minister (SAPM) on Political Communication Dr Shahbaz Gill retweeted a Supreme Court advocate's interpretation of Article 63-A, according to which votes cast against party lines would "not be considered valid and the speaker can declare them void and not include them in the overall count".
"Thank you. Some people did not understand this law. It's good that you have explained," Gill commented.
If the speaker does decide to reject the votes of dissident MNAs, can they approach the courts?
Last year, former prime minister Yousuf Raza Gilani challenged the results of the Senate chairman election in the Islamabad High Court (IHC), requesting that the rejection of the seven votes for Gilani be termed unlawful and the overall result be declared "null and void" on that basis.
The petition filed by Gilani stated that the rejection of the seven votes which were "unambiguously and unequivocally casted in the favour of the petitioner" was illegal and and unlawful. It argued that the result of the election was "contrary to the law and the Constitution" and thus it should be set aside.
However, the IHC had dismissed the petition, observing that proceedings of the parliament were "immune from interference by this court" under Article 69 of the Constitution which states that the "validity of any proceedings in [parliament] shall not be called in question on the ground of any irregularity in procedure".
Similar judgments have been issued by the superior judiciary, including the Supreme Court, before this as well, where courts have refused to interfere in the proceedings of parliament in light of Article 69 of the Constitution.
Article 69 of the Constitution states: "No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Majlise-Shoora (Parliament), shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers."
However, according to Jibran Nasir, the matter of the Senate elections was different because written rules on counting and/or rejecting votes were present in that case whereas Article 63-A does not allow the speaker to reject votes of dissident party members as it does not deal with counting of votes at all.
He said a "constitutional crisis" would be created if the NA speaker still decided to not count the votes.
When asked whether the MNAs would have any legal recourse in such a situation, Nasir said such a move by the speaker would amount to a "constitutional violation", thus, the parliamentarians could approach the courts.